Senator Biden The Congressional transfer of the rule making power was not then nor is now sanctioned by any substantive provision of the Constitution of the United States. In any case, the new rules governing the practice and procedure in the Supreme Court do not qualify as part of the supreme law of the land because they were not made pursuant to the Constitution. The 1949 technical amendment to the Judicial Code of the United States not only violated the principle of separation of powers, but also destroyed one of our most important constitutional checks and balances. Besides destroying the last vestige of our constitutional system of checks and balances, the 1949 amendment opened the door to unprecedented judicial legislation by the Court. If you had allowed me to speak, I would have questioned the nominee along the following lines: 1. What provisions for separation of powers are made in our State Constitutions and Bills of Rights? 2. Where do such provisions come from? 3. What provisions for separation of powers are made in the Constitution of the United States? 4. Where do such provisions come from? 5. What happens when one branch exercises the powers or performs the functions of the other to or either of them? 6. What does the principle of separation of pers mean? 7. Do you agree with the position take by John Marshall during Virginia's ratifying convention that the Constitution, if ratified, would ensure a regulated democracy? 8. 9. What was the basis for Marshall's position? Do you agree with the position taken by James Madison on the floor of the first Congress that the principle which separates our powers of government is the most sacred principle of the Constitution, indeed of any free constitution? Senator Biden 11. Do you agree that Congress made the rules governing the practice and procedure in the Supreme Court for 160 years pursuant to the second sentence of the second paragraph of section 2 of Article III of the Constitution? 12. Do you agree that Congress transferred the rule making power to the Supreme Court in 1949 by a technical amendment to the Judicial Code? 13. What substantive provision of the Constitution sanctioned the transfer of the rule making power to the Court? 14. Do you agree that the old rules made by Congress pursuant to the Constitution qualified as an integral part of the supreme law of the land by constitutional definition under Article VI, 2d Paragraph? 15. 16. 17. What happened to the old rules relating to evidence? What did the Court substitute for the rules relating to evidence? Do the new rules promulgated by the Court without constitutional sanction qualify as part of the supreme law of the land under Article VI, 2d paragraph? 18. If confirmed, how can you in good conscience and without reservation give your oath to support and defend the Constitution of the United States when the rules governing the practice and procedure in the Supreme Court are not sanctioned by the Constitution? Please acknowledge receipt and confarm inclusion of my letter of August 30, 1990 and this letter in the official public record of the confirmation hearing on the nomination of Judge Souter to become an associate Justice of the Supreme Court. Please also send me a copy of the Committee rules governing confirmation hearings as requested in my letter of August 30, 1990. Thank you again for your courtesy and consideration. 39-454-91-32 Sincerely, か John B. Minnick, individually I wish to file objections to the general line of questions being asked of In support of my objections, I am attaching a copy of my 1974 report to Please include this letter and the attached exhibit in the official public Thank you very much for your courtesy and consideration. Sincerely, John. Minnick, individually and on behalf of the National Attachment: Copy of 1974 report to the Virginia State Bar 11509 STURBRIDGE CT. FREDERICKSBURG, VA 22401 |